Equality before the law is a highly-contested principle, largely because there is no consensus on what it means for everyone to be treated equally. Does equality before the law mean that nobody believes himself to be superior or inferior to others? Does the Fourteenth Amendment guarantee that we must all enjoy the same social status? Can the Constitution ensure that no one feels slighted, ignored, or overlooked? Do citizens have a constitutional right to feel welcome and included in everything?
In his dissenting opinion in Plessy v. Ferguson (1896), Justice John Marshall Harlan emphasized that the Fourteenth Amendment equal protection clause guarantees that all are equal before the law. His understanding of this principle was that:
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
The Louisiana law that was challenged in Plessy enforced the principle of “separate but equal.” The majority ruled that “equal” does not mean racially integrated, relying in part on an early case from Massachusetts:
One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 19, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools.
Justice Harlan, dissenting in Plessy, argued that racial segregation automatically implies racial inferiority even if the services provided—in this case streetcar carriages—are identical. This is the same reasoning later seen in Brown v. Board of Education, which ruled that equal but segregated schools violate the Fourteenth Amendment equal protection clause.
The court in Brown believed that black children inevitably feel inferior if they are not permitted to attend the same schools as white children. They deemed racial integration to be essential in making people feel that they are in fact socially equal.
As the courts now see it, equality in the eyes of the law means ensuring that all feel equally included in public life. Students who object to the name of a school or other institution, on grounds that the name honors a historical figure who did not treat races equally, are said to have what amounts to a veto power under the Constitution. After all, offending black people is now said to be a violation of the Fourteenth Amendment.
This notion of equality is not concerned with material equality, or with having the same legal rights, but with the feelings of inferiority—or even feeling offended—based on race.
In essence, Justice Harlan read the equal protection clause as an “anti-hate” edict. Equality under the law, in his view, is intended to make people feel trusted, or valued, as equal members of the community. He said:
What can more certainly arouse race hate, more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?
The majority in Plessy rejected that reasoning. As they saw it, the purpose of the Fourteenth Amendment was to decree that freedmen were citizens of the USA and had the same right to the protection of the law as any other citizen. Equal treatment in the eyes of the law does not entail the right to feel equally included in society:
The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448,
“This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.”
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
In the majority view, segregating races did not imply that one race was “inferior and degraded” in the eyes of the law—feeling inferior was merely the interpretation chosen by those who were against segregation:
If this [feeling of inferiority] be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.
Time has vindicated the majority view that the “inferiority” interpretation reflects a choice of construction. Racial segregation has, in recent years, been a key plank of the “critical race theory” movement, whose supporters argue that reserving public spaces for the exclusive use of black people will help them to feel respected and valued. The Black Out movement promoted theater performances restricted to black audiences only, so that they can watch the show free from the “white gaze.”
Therefore, while Justice Harlan was right to highlight the importance of equality before the law, he was wrong to interpret that principle as an “anti-hate” sentiment. The law cannot force people not to hate others. That is Orwellian thought-police territory.
Feelings are subjective, and, as recent developments have shown, some people will always feel aggrieved no matter how much they are mollified. In fact, the more they are appeased, the more demoralized they feel. The attempt to relieve their frustration only further convinces them that their grievances are justified.
Justice Harlan was certainly right to reject the use of state power to segregate races. If people of different races wish to travel in the same coach, the state should not force them apart. For example, one of Robert E. Lee’s daughters were arrested in 1902 for traveling in a coach designated for black people. As reported in the New York Times,
ALEXANDRIA, Va., June 13.—An arrest that caused considerable excitement occurred shortly after 7 o’clock to-night, when Miss Mary Curtis Lee, daughter of Gen. Robert E. Lee, was taken into custody charged with violating the law affecting the Washington, Alexandria and Mount Vernon Electric Railway, which provides for the separation of white and colored passengers.
Miss Lee was arrested on complaint of Conductor Thomas Chauncey and was escorted to Police Headquarters, where, after telling her story, she was released on her personal bonds for appearance in court to-morrow, should the railroad company decide to prosecute the case.
Miss Lee boarded the car at Washington, D.C., and without realizing it had taken a seat in the portion reserved for colored people. She was comfortably seated and, being encumbered with several bundles, declined to move to the forward part of the car, although the conductor explained the law on the subject to her.
Although Justice Harlan rightly objected to state segregation, he failed to follow his own reasoning through, because the same moral principle on which he relied—freedom of association—is incompatible with state power to enforce racial integration.
State compulsion violates freedom of association whether the state is forcing people to segregate or forcing them to integrate. Forcing Rosa Parks to move to the black section was just as wrong as forcing Mary Curtis Lee to move to the white section. Sending federal troops to integrate schools in Arkansas was just as wrong as sending state troops to enforce segregation in schools which chose to integrate—indeed, even more so, because federal intervention adds violation of state sovereignty to the original interference with freedom of association.
